Thanks, Marty. I think that is an appropriate way to characterize the question under the current federal legal framework for colleges. (State tax laws may present different questions with less predictable results.)
I understand that you think attempts to revoke the tax exempt status of religious schools is unlikely. But I read Michael's posts and those of other list members who express concerns on this issue to be asking two question: 1. Is the possible revocation of the tax exempt status of privately funded religious schools because they discriminate against the LGBT community a reasonable and foreseeable concern and 2. Would list members oppose such revocations (even though they strongly disagree with the discriminatory policies) because of a principled commitment to religious liberty (or some more general associational autonomy values.) I don't know how to ask the second question without at least assuming an affirmative answer to the first question. Alan ________________________________ From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> on behalf of Marty Lederman <lederman.ma...@gmail.com> Sent: Thursday, April 30, 2015 12:30 PM To: Law & Religion issues for Law Academics Subject: Re: Gordon College v. Bob Jones Redux v. Conflicts Actually Likely to Arise OK, a religious school in 2017 wishes to exclude LGBT students -- or more narrowly, those who are married -- even though few, if any, do so presently. What is the legal question then? Whether IRS currently has statutory authority to pull its tax-exempt status? Probably not since, after all, Congress has not even yet made sexual-orientation discrimination in higher ed a grounds for denial of federal funding. I suppose the relevant question, therefore, is whether Congress should add "sexual orientation" to Title IX, but not subject it to the 1681(a)(3) exemption for religious organizations. In which case, my tentative view is that Congress should probably treat sexual orientation the same way it treats sex in higher ed--prohibiting the discrimination, but with the (a)(3) religious exemption. That is to say, sexual orientation should be treated like sex--no better; no worse. But again, I doubt this'll be an actual dispute. And, more to the point, I doubt the Court's decision in Obergefell will have any legal bearing on it. On Thu, Apr 30, 2015 at 3:02 PM, Alan E Brownstein <aebrownst...@ucdavis.edu<mailto:aebrownst...@ucdavis.edu>> wrote: The school or college could discriminate against the LGBT community in a variety of ways -- both as to students and faculty. But let's assume we are talking about 2017 and a privately funded religious college denies admission to a student because they are married to someone of the same sex. (I don't know if there are schools that have such policies today -- but it's a hypo.) Or let's assume a privately funded religious pre-school refuses to accept children of a same-sex married couple. ________________________________ From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> <religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>> on behalf of Marty Lederman <lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>> Sent: Thursday, April 30, 2015 11:42 AM To: Law & Religion issues for Law Academics Subject: Re: Gordon College v. Bob Jones Redux v. Conflicts Actually Likely to Arise A school that does not admit LGBT students, Alan? Are there even such schools now? In what year does your hypo occur? On Thu, Apr 30, 2015 at 2:30 PM, Alan E Brownstein <aebrownst...@ucdavis.edu<mailto:aebrownst...@ucdavis.edu>> wrote: None of us can predict the future very well. The world today is very different than I thought it would be 30 years ago. The question we can answer today is whether we would support or oppose the denial of a tax exemption to a privately funded religious school that engages in discrimination against the LGBT community. That answer, even as a matter of principle, may change over time. But it is a place to begin. So if I may ask, Jim. Would you support or oppose the denial of a tax exemption in such a case? Alan ________________________________ From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> <religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>> on behalf of James Oleske <jole...@lclark.edu<mailto:jole...@lclark.edu>> Sent: Thursday, April 30, 2015 8:55 AM To: Law & Religion issues for Law Academics Subject: Re: Gordon College v. Bob Jones Redux v. Conflicts Actually Likely to Arise Thanks, Michael. Let me close on a point of agreement, albeit one that I understand will give you no comfort. In a 2011 article, Doug wrote the following: "There will come a time when religious hostility to gays and to same-sex relationships will be as disreputable as religious hostility to blacks and to interracial relationships.... But it makes all the difference in the world how we get there." I have disagreed with Doug on the "how we get there" piece of that assessment, as he supports broader accommodations in the short term than do I, but I think Doug's long-term assessment is likely correct, with one caveat. The caveat is that because racial discrimination is our original sin as a nation, and because it had consequences beyond those flowing from any other type of discrimination, it may always be subject to special targeting in some circumstances. Thus, although our antidiscrimination laws and regulations usually ban other types of discrimination alongside racial discrimination, sometimes racial discrimination is singled out for unique treatment, as the IRS rule illustrates. I think that same pattern will hold true in the future -- sexual-orientation discrimination will join sex, religion, and often a host of other types of prohibited classifications alongside race in most contexts, but there will continue to be contexts in which race discrimination is treated as unique and targeted alone. Overall, however, I think you are right to suspect that the status/conduct distinction will be rejected and beliefs condemning homosexual conduct will become very marginalized in our society by the time your children and grandchildren are adults. The process has already begun, and it will continue to accelerate. And regardless of what happens with the IRS rule in the long-term, countless other laws and regulations prohibiting discrimination on a variety of bases will be extended to sexual-orientation discrimination, and that -- along with the growing acceptance of married same-sex couples raising families in our communities -- will reinforce a growing societal norm against sexual-orientation discrimination, which will be widely viewed as including discrimination against same-sex couples. I think movement toward that new norm is a good thing, others think it is a bad thing, but I don't think there can be any doubt that it is where we are headed. - Jim On Thu, Apr 30, 2015 at 6:42 AM, Michael Worley <mwor...@byulaw.net<mailto:mwor...@byulaw.net>> wrote: Thanks Jim, I think, I was remembering the earlier Gordon College coverage that did not make the distinctions you mentioned (and which deserved more concern than it got). I do think it is conceivable Gordon College is understating its concerns, but agree with your interpretation of the recent stories. That said, other parties (not nearly as central to the school's function as accreditation) did discontinue their association with the school last year. However, I think I could still make a prima facie case for concern, given the following facts: 1. A declining ability to defend traditional morality in the public square. (http://www.glad.org/uploads/docs/cases/kitchen-v-herbert/kitchen-scotus-cert-steven-calabresi-brief.pdf) 2. The fears of the LGBT community, as shown in the Indiana RFRA and other (admittedly for-profit) settings. 3. The fact that our nation is consistently becoming more protective of LGBT rights. 4. Gerrymandering in the House, which favors Republicans now, but may change in the next census. 5. The likelihood of a Hillary Clinton presidency (Clinton recently said "Laws have to be backed up with resources and political will, and deep-seated cultural codes, religious beliefs and structural biases have to be changed") and a Democratic Senate in 2016 (the map is quite good for democrats). 6. Previous attacks on religious non-profits by this administration (HHS mandate, Hosanna-Tabor) 7. The fact that liberals in California are already distancing religious and non-religious non-profits from the state (http://www.becketfund.org/chialphalettertocalstate/; http://www.npr.org/2015/03/16/392360308/california-judges-must-cut-ties-with-the-boy-scouts) 8. Threats on the Boy Scouts' tax-exempt status which (while I'll stipulate they failed), demonstrate the ability of liberals to threaten the tax exempt status of non-profits over issues of sexuality. 9. An admission by the Solicitor General of the United States that this will be an issue. 10. Language in CLS declining to distinguish between sexual feelings and sexual activity. I hope I'm wrong. In fact, if you are right and I am wrong, that is phenomenal news. You may be able to say you don't see it likely, but I think it is plausible. Also, keep in mind, I want religious schools to keep tax-exempt status so my children and grandchildren can attend. At age 26, I'm concerned about the next 50 years, not just the next 5. On Thu, Apr 30, 2015 at 1:31 AM, James Oleske <jole...@lclark.edu<mailto:jole...@lclark.edu>> wrote: My apologies to Michael for the delay in answering the question he asked of Chip and me earlier about Gordon College. I'll be honest, the Gordon College situation was not on my radar, and now I think I know why. Last October, the College issued a statement that "[c]ontrary to recent media reports, Gordon’s accreditation is not in jeopardy, as its admission and employment policies have always been in full compliance with the NEASC Standards for Accreditation and with nondiscrimination employment law, which has been in place in the Commonwealth since 1989." In covering the statement, Christian publisher OneNewsNow (American Family News Network) further reported that the college's spokesman "attests that the NEASC is not pressing Gordon College to make concessions when it comes to upholding its Christian heritage and behavioral standards." The College's statement appears to have ended most news coverage of the matter, but the story continued to generate commentary. For example, in a January National Review piece entitled "The Persecution of Gordon College," David French wrote that the accrediting agency had sent Gordon the message that "[y]ou have one year to choose between your conscience and your accreditation." Thus, French wrote, "[f]or Gordon, the death penalty now looms." This characterization of the situation is mighty hard to square with either (1) Gordon College's own representation of the situation back in October or (2) the President of the Council of Christian Colleges statement this March that "We knew all along that Gordon's accreditation was not at risk." Again: "We knew all along that Gordon's accreditation was not at risk." From the President of the Council of Christian Colleges. As for Bob Jones, I think it is really difficult to read that opinion as anything other than a decision to treat racial discrimination in education as a sui generis category for the reasons Chip has given. Based on that uniqueness, the Court was willing to (1) accept an IRS interpretation that almost certainly would have been rejected if it concerned any other type of discrimination and (2) reject a free exercise claim by a nonprofit religious institution that likely would have succeeded at the time if any other type of discrimination had been at issue (e.g., sex or religious discrimination). As I said in my earlier message, I'm skeptical that the current Court would defer to a new interpretation of the statute by the IRS. And though several people have responded by expressing suspicion that the Administration has designs on changing the interpretation (a suspicion I do not share), nothing I've read so far makes me any less skeptical that the Court would be willing to accept such a new interpretation. That leaves Congress, which is not going to strip religious institutions of tax-exempt status anytime soon, if ever. It seems to me that the actual conflicts that are likely to arise in the coming years will be similar to the ones that have already been arising, most of which have involved for-profit enterprises, but some of which have involved non-profits (e.g., the New Jersey pavilion case). From my perspective, most of the solutions to these conflicts are best found by looking at how we have -- or have not -- accommodated similar religious claims in the past. In the past, we haven't made religious exemptions to civil rights laws in the for-profit realm, but we often have done so in the nonprofit realm. - Jim _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Michael Worley J.D., Brigham Young University _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
